Delhi High Court
Rajinder & Ors vs State N.C.T. Of Delhi on 26 May, 2026
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 09.04.2026
Pronounced on: 26.05.2026
+ CRL.A. 581/2002
RAJINDER & ORS. .....Appellants
Through: Mr.Manoranjan Kumar, Adv.
versus
STATE N.C.T. OF DELHI .....Respondent
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav, Adv.
and Insp. Anand Prakash, SI
Pardeep Kumar, PS K. M. Pur
for State
Mr.Raj Aryan Singh, Adv. for
the complainant
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
NAVIN CHAWLA, J.
1. The present appeal has been preferred by the appellants,
challenging the Judgment of conviction dated 28.05.2002 passed by
the learned Additional Sessions Judge, New Delhi (hereinafter
referred to as, the „Trial Court‟), in Sessions Case No. 187/1999,
arising out of FIR No. 309/1999, registered at Police Station Kotla
Mubarakpur, convicting them of the offence punishable under Section
302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter
referred to as „IPC‟).
Signature Not Verified
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By:REYMON VASHIST
Signing Date:26.05.2026
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2. The appellants further challenge the Order on sentence dated
30.05.2002 passed by the learned Trial Court, sentencing them to
undergo life imprisonment along with a fine of Rs. 5,000/- each for
the offence under Section 302 read with Section 34 of the IPC. In
default of payment of the said fine, they have been sentenced to
undergo further rigorous imprisonment for a period of six months.
3. At the outset, it is noted that appellant no. 4/Jasvinder @ Sunny
passed away on 27.04.2010. Accordingly, as recorded in the order
dated 10.12.2015, the present appeal stands abated qua appellant no.4.
CASE OF THE PROSECUTION
4. Briefly stated, it is the case of the prosecution that:
(a) On the day of the incident, that is, in the night intervening
23.06.1999 and 24.06.1999, at about 12:30 a.m., the deceased-Rakesh
Kumar went to check whether the tractor-trolley he had hired to
remove the debris of his dismantled house had arrived or not. When he
did not return for some time, PW-1/Suresh Kumar, the brother of the
deceased, went in search of him.
(b) Upon reaching outside the gali, PW-1/Suresh Kumar saw that
the deceased, who had his back towards PW-1, was surrounded by the
appellants, namely, Rajinder (appellant no.1), Ravi Kumar @ Raju
(appellant no.2), Mangal Khatri (appellant no.3) and Jasvinder @
Sunny (appellant no.4). He saw that the appellant no.1/Rajinder had
restrained the deceased by holding his hands behind his back, while
the appellant no.2/Ravi Kumar was stabbing him from the front side
and was saying that he would not leave him alive today. On his right
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side was appellant no.3/Mangal Khatri, who was exhorting „maar
saale ko‟ (kill the scoundrel). On the right side of the deceased was
appellant no.4/ Jasvinder @ Sunny, who was holding a knife and was
saying, „Raju, he (Rakesh) is not to be spared today‟.
(c) On witnessing the incident, PW-1/Suresh Kumar cried to save
his brother and rushed towards the deceased, upon which the
appellants ran towards the broken wall of pump house, jumped the
wall and fled into the park. The deceased fell in injured condition. On
hearing their cries, PW-3/Gopal Kumar, brother of PW-1 and
deceased, and some neighbours gathered at the place of the incident.
(d) PW-3 informed the police at 100 number of the incident, using
the phone at their residence. The same was recorded vide DD No. 22A
at 1:06 a.m.
(e) Thereafter, PW-1/Suresh Kumar and PW-3/Gopal Kumar
immediately took the deceased to AIIMS, where he was declared
brought dead. Information of the same was received from the Duty
Constable and was recorded as DD No.23 at 1:20 a.m.
(f) The police, after receiving the information of stabbing, went to
the spot and learnt that the injured was removed to hospital. The
police then went to AIIMS. As the deceased had died, statement of
PW-1 was recorded in the hospital itself by the I.O. and the rukka was
sent to the Police Station for registration of FIR at 03:10 a.m.
(g) The FIR was registered on 24.06.1999, at around 03:25 a.m., on
the basis of the statement of the complainant, PW-1/Suresh Kumar, in
which all the appellants were named by him as the assailants.
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By:REYMON VASHIST
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(h) PW-2/Dr. T. Millo conducted the post-mortem examination of
the deceased and found seven stab wounds and three incised wounds
on the chest region of the deceased. The death of the victim was
opined to have taken place due to haemorrhagic shock caused due to
injury nos. 1 to 5, which were opined to be sufficient to cause death in
the ordinary course of nature. It was also opined that the injuries were
inflicted by a sharp and pointed weapon.
(i) During the course of investigation, appellant no.1/Rajinder was
arrested in the evening of 24.06.1999, from outside his house. The
remaining three appellants moved an application before Court, seeking
to surrender on 29.06.1999, however, they did not do so and were later
apprehended on the same day from Sarai Kale Khan bus-stand, when
they were allegedly attempting to leave Delhi.
(j) It is further the case of the prosecution that upon their arrest, the
disclosure statements of the appellants were recorded. Pursuant
thereto, appellant no.2/Ravi @ Raju led the police to his meat shop
and got three blood-stained knives and one blood-stained T-shirt
recovered. He also got recovered his pants which he was wearing on
the day of the incident. At the instance of appellant no.1/Rajinder, a
scooter was recovered, which was allegedly used by the appellants for
running away after commission of the offence. Further, at the instance
of appellant no.4/Jasvinder @ Sunny, a shirt is stated to have been
recovered, which was allegedly worn by him at the time of the
incident, though later washed.
(k) The said recovered scooter belonged to one- Subhash Chander,
who had given it to appellant no.2/Ravi @ Raju.
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By:REYMON VASHIST
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(l) From the disclosures of the appellants, it was further discovered
that the appellants had taken shelter after commission of the offence at
the house of one- Nem Singh.
(m) It is also the case of the prosecution that there was a history of
enmity between the appellant no.2/Ravi @ Raju and the deceased.
This enmity arose about eight to nine months prior to the alleged
incident, when the appellant no.2, along with one friend, Sudesh,
picked a fight with PW-5/Narender Kumar @ Bittoo with a view of
vacating him from the house of his paternal uncle (tau). The deceased,
along with PW-1/Suresh Kumar and PW-3/Gopal Kumar, had
intervened in the said altercation and had opposed the appellant
no.2/Ravi @ Raju. It is also stated that a police complaint in this
regard was also registered, pursuant to which the appellant no.2/Ravi
@ Raju and Sudesh were arrested. It is alleged that since happening of
this incident, appellant no.2 had become inimical towards the family
of the deceased and had also extended threats to them on several
instances.
5. Upon completion of investigation, chargesheet was filed against
the appellants for the offence under Section 302 read with Section 34
of the IPC. Subhash Chander and Nem Singh were charged for the
offence under Section 201 and Section 212 of the IPC, respectively.
6. The learned Trial Court, vide order dated 09.02.2000, framed
the charge against the appellants as under:
“That on 24.6.99 at about 12.30 a.m. on the
road near Sheetla Mandir, Bapu Park, within
the jurisdiction of P.S. Kotla Mubarakpur you
all in furtherance of your common intention
caused the death of Rakesh and therebySignature Not Verified
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By:REYMON VASHIST
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committed his murder and thus you committed
an offence punishable u/s 302 r/w 34 IPC and
within the cognizance of this court.
And I hereby direct you to be tried by this
court of Sessions on the above charge.”
7. The appellants pleaded not guilty and claimed trial.
8. As far as Subhash Chander is concerned, Charge was framed
under Section 201 of the IPC. Against Nem Singh, Charge under
Section 212 of the IPC was framed. They also pleaded not guilty to
the charges.
9. In support of its case, the prosecution examined 17 witnesses,
including PW-1/Suresh Kumar, who is stated to be the sole eye-
witness of the incident, as well as the concerned public and official
witnesses.
10. Thereafter, the statements of the appellants were recorded under
Section 313 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) on
10.09.2001, wherein they denied all the allegations made against them
and claimed false implication in a concocted case registered on the
basis of false testimonies of interested witnesses. The appellant
no.1/Rajinder stated that PW-1/Suresh Kumar had come to his house
in the evening of the day following the incident, and asked him to
depose against the other appellants. He refused, and that is why he has
been falsely implicated in the present matter. He also stated that he
had suffered hysterical convulsion and was lying in his bed at the time
of the incident. The appellant no.2/Ravi @ Raju stated that their false
implication stemmed from a misplaced suspicion of PW-1/Suresh that
the appellants had beaten PW-5/Narender Kumar @ Bittoo, who used
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By:REYMON VASHIST
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to run auto rickshaw for PW-1/Suresh. Appellant no.3/Mangal further
stated that he was falsely implicated in the present case only because
he was the servant of appellant no.2/Ravi @ Raju.
11. In their defence, the appellants examined 4 witnesses,
contending that the appellant no.1/Rajinder was present at his house
on the night of the incident. DW-1/Kanhaiya Lal, DW-3/Babu Lal and
DW-4/Subhash Chander deposed that on the day of the incident, they
were present with appellant no.1/Rajinder at his house from about
11:00 p.m. till 2 a.m., as appellant no.1/Rajinder had suffered an
epileptic fit and was unconscious. They also stated that there was no
electricity in the area from around 11:30 p.m. to 12:30 a.m. Further,
DW-2/M.P. Singh, Jr. Engineer, DESU stated that a mechanic left at
around 11:30 p.m. and returned at 12:30 a.m. after repairing the fault
in electricity.
12. Upon appreciation of the evidence, the learned Trial Court held
that the prosecution had proved its case beyond reasonable doubt
against the appellants and convicted them under Section 302 read with
Section 34 of the IPC. The learned Trial Court concluded as under:
“14. Considering the testimony of PW-1,
CFSL report, recovery of knives and T-shirt at
the instance of accused Ravi, and the fact that
all accused persons were absconding after the
murder, they made application before the
magistrate for surrender but did not surrender
and were trying to abscond, show that they
were involved in the murder of deceased
Rakesh Kumar.
xxxx
18. It is argued by counsel for accused persons
that accused Rajendar and Mangal have not
been assigned any role of inflicting knife blowsSignature Not Verified
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By:REYMON VASHIST
Signing Date:26.05.2026
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to Rakesh. Knife blows have been inflicted, as
per the prosecution, by accused Ravi and
Jasvinder @ Sunny. There-fore, these accused
persons had no role in the murder and their
mere presence on the spot should not be
considered that they participated in the
murder. The prosecution has proved that
accused Rajendar Kumar was holding the
hands of deceased Rakesh on his back, when
other two accused persons i.e. Jasvinder @
Sunny and Ravi @ Raju had given knife blows.
Mangal was also crying and calling for killing
Rakesh. It is to be noted that not two but three
meat cutting knives have been recovered at the
instance of Ravi @ Raju. The presence of
accused Mangal and Rajendar on the spot has
been proved by PW Suresh. All the four had
come to the spot in search of deceased Rakesh
in order to kill him. Murder had taken place at
12.30 a.m. in the night. It has also been proved
on record that Rakesh deceased was himself
facing some criminal trials and copies of
charge sheets and judgments have been placed
on record. It has been argued by counsel for
accused Rajendar that Rakesh was a hefty
strong person and accused Rajendar was a
lean and thin person. It would not have been
possible for Rajendar to hold his hands. I
consider that since deceased Rakesh was a
strong and hefty man, planning to kill him
must have been made by accused persons
collectively. Accused Rajendar has been
appearing in court and I do not find him a lean
and thin person. He is an ordinary built-up
person. All the four accused persons
collectively had killed Rakesh with the
common intention of murdering him and to
ensure this, they chose the time of midnight
and attacked him. The deceased was alone in
the gali. Since they were living in the same
area, they knew the habits of deceased and the
fact that he would be available at that hour of
the night. It has come on record that the
deceased made complaint to DESU at 11.30
p.m. and got the electricity rectified and thatSignature Not Verified
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By:REYMON VASHIST
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shows that deceased was very much available
at that time and was in the gali for
rectification of electricity and for getting the
malba (debris) picked-up and this fact was
known to accused persons, who had pre-
planned to murder him. I consider that the
four accused persons viz. Rajendar, Ravi @
Raju, Mangal and Jasvinder @ Sunny, with
common intention killed Rakesh and are guilty
of offence u/s 302 r/w sec. 34 IPC. They all are
convicted accordingly.
13. Thereafter, the Order on sentence dated 30.05.2002 was passed,
imposing the sentence as noted hereinabove on the appellants.
14. As far as accused Nem Singh and Subhash are concerned, they
were acquitted of the charges.
SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL
FOR THE APPELLANTS:
15. The learned counsel for the appellants submits that the learned
Trial Court has erred in relying upon the testimony of PW-1/Suresh.
On account of him being an interested and related witness, his
testimony had to be scrutinized with great caution. He points out that
there were material inconsistencies in his statement, inasmuch as, in
the rukka, he had stated that the stab injuries were inflicted by
appellant no.2/Ravi @ Raju, however, at the time of his examination-
in-chief he deposed that the injuries were inflicted by appellant
no.2/Ravi @ Raju and appellant no.4/Jasvinder @ Sunny, and finally,
in his cross-examination, he testified that he had not actually seen the
appellants inflicting stabs on the deceased but had only seen knives in
the hands of appellant nos. 2 and 4. Relying on the judgment of the
Supreme Court in Ramu Appa Mahapatar v. State of Maharashtra,
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(2025) 3 SCC 565, he submits that these omissions amount to a
contradiction, making PW-1/Suresh Kumar an unreliable witness. He
submits that if the eye-witness is not found reliable, his testimony
cannot form the basis of conviction of the appellants. In support, he
places reliance on the judgments of Supreme Court in George v. The
State of Tamil Nadu & Ors., 2024 INSC 974; Harvinder Singh alias
Bachhu v. State of Himachal Pradesh, 2023 SCC OnLine SC 1347;
Mahendra Singh & Ors. v. State of Madhya Pradesh, (2022) 7 SCC
157; Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372;
Kannaiya v. State of Madhya Pradesh, 2025 SCC OnLine SC 2270;
Saheb, S/o Maroti Bhumre etc. v. State of Maharashtra, 2024 SCC
OnLine SC 2580; Amar Singh v. State (NCT of Delhi), (2020) 19
SCC 165; and of this Court in Manoj Shukla @ Prem v. State (Govt.
of NCT of Delhi), ILR (2012) 2 Del 782.
16. The learned counsel further submits that the testimony of PW-
3/Gopal Kumar also cannot be relied upon as he was not an eye-
witness to the incident. The evidence brought in by him is merely
hearsay evidence, as he was only apprised of the incident by PW-
1/Suresh Kumar on the way to the hospital. He further submits that the
prosecution‟s case also becomes doubtful from the fact that, PW-
3/Gopal Kumar, while informing the police, only mentioned that “ek
ladke ko chaaku maar diya hai” (a boy has been stabbed), which
seems unnatural considering that the deceased was his own brother.
17. He submits that there is also an unexplained delay in the
registration of the FIR, as the same was not recorded at the time of the
first receipt of information, that is, the call received about the stabbing
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By:REYMON VASHIST
Signing Date:26.05.2026
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or about the deceased being brought dead in the hospital, but only at
3:25 am on the basis of an alleged statement made by PW-1. He
submits that the first information of the offence was received at
around 01:00 a.m., vide DD No. 22A (Ex. PW-16/A), when PW-
3/Gopal Kumar had informed the police of the offence. However, the
FIR was registered only at 03:25 a.m. on the statement of PW-
1/Suresh. He submits that the delay in registration of the FIR casts a
doubt on PW-1 or PW-3 being witness to the incident and the case
being concocted later against the appellants. In support, he places
reliance on Allarakha Habib Memon & Ors. v. State of Gujarat,
(2024) 9 SCC 546; Amitbhai Anilchandra Shah v. Central Bureau of
Investigation & Anr., (2013) 6 SCC 348; Anju Chaudhary v. State of
Uttar Pradesh & Anr., (2013) 6 SCC 384; B. N. John v. State of U.P.
& Anr., 2025 SCC OnLine SC 7; Surender Kaushik & Ors. v. State
of Uttar Pradesh & Ors., (2013) 5 SCC 148; Ramesh Baburao
Devaskar & Ors. v. State of Maharashtra, (2007) 13 SCC 501;
Mahesh v. State, 2019 SCC OnLine All 3595 and, Sekaran v. State of
Tamil Nadu, (2024) 2 SCC 176.
18. He submits that there is also non-compliance with the mandate
of Section 157 of the Cr.P.C., which also creates a doubt on the case
of the prosecution. In support, he places reliance on Arjun Marik
(supra) and Usha R. Patwari v. Karnataka Lokayuktha, 2016 SCC
OnLine Kar 6899.
19. The learned counsel also disputes the prosecution‟s case
regarding enmity being the motive behind the offence and contends
that even if the animosity is assumed to exist qua appellant no.2/Ravi
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@ Raju, no motive has been attributed to appellant nos. 1, 3 and 4,
who are also alleged to have participated in the offence.
20. Relying on the judgment of the Supreme Court in Aslam @
Imran v. State of Madhya Pradesh, 2025 SCC OnLine SC 670, he
further submits that personal enmity is a double-edged sword and
cannot assist the prosecution case, rather shows a possibility of false
implication.
21. He submits that though it is the case of the prosecution that
PW-1/Suresh Kumar and PW-3/Gopal Kumar had removed the
deceased to the hospital, their clothes, which would have been blood-
stained, were not seized. This creates a serious doubt as to the
presence of PW-1 or PW-3 at the place of incident. In support, he
places reliance on the Judgment in Khima Vikamshi & Ors. v. State
of Gujarat, (2003) 9 SCC 420.
22. He submits that even though as per the prosecution witnesses,
there were independent witnesses present at the spot, none of them
were examined or produced before the learned Trial Court, thereby,
again raising a doubt on the case of the prosecution. In support, he
places reliance on Khima Vikamshi (supra).
23. The learned counsel contends that the weapons of offence, that
are, the knives, were recovered from an open space with no public
witnesses, thereby making the recovery in itself doubtful and not
credible. He submits that the presence of knives at the shop of
appellant no.2/Ravi @ Raju is not unnatural as the same was a meat
and chicken shop. To dilute the credence of the recovery, he relies on
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the judgment in Kattavellai @ Devakar v. State of Tamil Nadu, 2025
SCC OnLine SC 1439.
24. He further argues that the prosecution has failed to connect the
said weapons to the offence, as the knives were neither shown to the
doctor who conducted the post-mortem, nor were any fingerprints
lifted from them. He submits that mere match of blood group does not
ipso facto connect the weapon to the offence. Further, he contends that
the recovery, in itself, is doubtful on account of the long period of
time between the incident and the disclosure. In support, he places
reliance on Ishwar Singh v. State of Uttar Pradesh, (1976) 4 SCC
355; Kartarey & Ors. v. State of Uttar Pradesh, (1976) 1 SCC 172;
Harvinder Singh alias Bachhu (supra); Ashish Batham v. State of
Madhya Pradesh, (2002) 7 SCC 317; Allarakha Habib Memon
(supra) and, Khima Vikamshi (supra).
25. He further submits that the recovery of the weapon is only at the
instance of the appellant no.2 and is insufficient to convict the other
appellants. In support, he places reliance on Pancho v. State of
Haryana, (2011) 10 SCC 165 and Manoj Kumar Soni v. State of
Madhya Pradesh, (2024) 17 SCC 401.
26. He submits that the learned Trial Court has erred in drawing an
adverse inference of guilt from the allegation that the appellants had
absconded. He submits that this conduct is not unnatural and may be
out of a fear of arrest and harassment. In furtherance, he places
reliance on the judgments in S.K. Yusuf v. State of West Bengal,
(2011) 11 SCC 754; Harvinder Singh @ Bachhu (supra); Narayan
Yadav v. State of Chhattisgarh, 2025 INSC 927; and Bipin Kumar
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Mondal v. State of West Bengal, (2010) 12 SCC 91. He further
submits that even on facts, such an observation is incorrect, inasmuch
as appellant no.1 did not abscond and was arrested from outside his
house.
27. The learned counsel points out that the role assigned to
appellant no.3 is that of mere presence and generic exhortation. He
submits that the same is insufficient for conviction under Section 302
read with Section 34 of the IPC. In support, he places reliance on Vijai
@ Babban v. State of Uttar Pradesh, 2025:AHC:134249-DB.
28. The learned counsel also raises doubts on the credibility of the
MLC Report. He submits that the same fails to mention the names of
the alleged assailants. He further contends manipulation in the Report,
inasmuch as in the column for „name of relative or friend‟, „SURESH
KUMAR‟ and „Brother‟ has been written in a different handwriting.
He submits that the MLC Report also fails to mention the nature of the
weapon used.
29. The learned counsel submits that the prosecution has also failed
to show that there was sufficient light on the spot of the incident, and
contends that it is hard to believe that the eye-witness, PW-1, could
have accurately identified the appellants and the weapons being used
by them. He submits that even the site plan (Ex. PW-17C) is not
reliable as it fails to mention the source of light. For the same, he
relies upon the judgment in Kannaiya (supra).
30. He further submits that even trails of blood, house of the
deceased, and the route of the deceased, have not been shown in the
site plan.
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31. He submits that in view of the above, and considering the
testimony of the defence witnesses, the benefit of doubt has to be
given to the appellants. He submits that conviction cannot be based on
conjectures and surmises. In support, he places reliance on Vaibhav v.
State of Maharashtra, (2025) 8 SCC 315 and Krishnegowda & Ors.
v. State of Karnataka, (2017) 13 SCC 98.
32. He submits that the learned Trial Court has not given due
credence and weightage to the witnesses produced in defence of the
appellant no.1. He submits that such defence witnesses are entitled to
equivalent credence as those produced by the prosecution. In support,
he places reliance on Mahendra Singh (supra) and Vaibhav (supra).
33. The learned counsel prays that the judgment of conviction and
the order on sentence, therefore, deserve to be set aside, and the
appellants deserve to be acquitted of all charges and allegations.
SUBMISSIONS ON BEHALF OF THE LEARNED ADDITIONAL
PUBLIC PROSECUTOR
34. Mr. Aman Usman, the learned APP for the State, submits that
there are no infirmities in the conviction and sentence awarded to the
appellants, and the same do not warrant any interference by this
Court.
35. He submits that the testimony of the sole eye-witness,
PW-1/Suresh Kumar, who is also the brother of the deceased, is
trustworthy and well corroborated by the surrounding circumstances,
that is, the other witness testimonies and DD entries. It is contended
that minor discrepancies, if any, are inconsequential and cannot
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affect the prosecution‟s case, rather, they prove the bona fide of PW-
1/Suresh Kumar. He submits that the testimony of PW-1 cannot be
disregarded only on the ground that he is related to the deceased. In
support, he places reliance on the judgment of the Jammu and
Kashmir High Court in Pritam Singh v. State, 2022:JKLHC-
JMU:2885-DB.
36. On the question of PW-1/Suresh Kumar not seeing the actual
stabbing, he submits that the same does not go against the
prosecution‟s case, inasmuch as it was merely due to the deceased‟s
back being towards the witness and the injuries being inflicted on the
front side. He submits that the testimony of PW-1/Suresh Kumar, in
fact, clearly establishes active participation of the appellants. The
learned APP also argues that had the prosecution wanted to falsely
implicate the appellants in the present case, it could have projected
the other witnesses also as eye-witnesses.
37. The learned APP further submits that there is no infirmity in
the registration of the FIR, which was lodged promptly, that is, by
03:25 a.m. He emphasises that the FIR, in fact, furthers the
prosecution‟s case, as the names of all the four appellants were
disclosed at the earliest opportunity, thereby ruling out the possibility
of false implication as an after-thought. In view of this, he contends
that the absence of appellants‟ name in the MLC Report is irrelevant,
especially considering the state of shock PW-1/Suresh Kumar and
PW-3/Gopal Kumar would have been in.
38. The learned APP also refutes the contention that the recovery
at the instance of appellant no.2/Ravi @ Raju was effected from an
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open space and therefore, cannot support the prosecution‟s case. He
submits that although the place of recovery may have been open to
sky, the articles were recovered from a concealed place, that is, under
a takht in the junk area within the boundaries of the meat shop of
appellant no.2.
39. He points out that PW-2/Dr. T. Millo categorically opined that
that the injuries on the deceased were caused by a sharp cutting
object. Further, the knives recovered at the instance of appellant
no.2/Ravi @ Raju were found to contain blood of the same blood
group as that of the deceased. He contends that thus, the recoveries
establish an unbroken forensic link connecting the appellants to the
offence and lending corroboration to the direct evidence given by
PW-1/Suresh Kumar. In view of the above, he submits that no
adverse inference can be drawn for the non-production of the
recovered knives to the doctor for opinion, as it does not dilute the
prosecution‟s case which is based on direct evidence. Reliance to this
effect is placed on the judgment of the Supreme Court in
Ghanshyam Mandal & Ors. v. The State of Bihar (Now
Jharkhand), 2026 INSC 194 and the Jharkhand High Court in
Doman Murmu @ Ramdhu Murma v. The State of Jharkhand,
2024:JHHC:21102-DB.
40. He submits that the prosecution has also proved the motive of
the offence which involved a quarrel leading to appellant no.2
harbouring a deep grudge against the deceased and his family.
41. He further submits that though the appellant nos. 2, 3 and 4
moved a surrender application, they never appeared in Court. They
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were, in fact, apprehended when they were attempting to abscond.
He submits that this conduct reveals their consciousness of guilt and
is a strong incriminating circumstance in favour of the prosecution.
42. The learned APP submits that, in view of the above, the
conviction and sentence awarded by the learned Trial Court is based
on the corroborated testimony of the eye-witness PW-1/Suresh
Kumar, the recoveries made at the instance of the appellants, their
conduct after the incident and the CFSL Report, and hence, deserve
to be confirmed.
SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL
FOR THE COMPLAINANT
43. Mr. Ramesh Kumar Mishra, the learned counsel for the
complainant, while adopting the submissions advanced by the learned
APP, further emphasizes that the testimony of PW-1/Suresh Kumar is
trustworthy and unshaken, with no material contradictions. In support,
he places reliance on State of Himachal Pradesh v. Hukum Chand @
Monu, 2026 SCC OnLine SC 462 and Gurcharan Singh & Anr. v.
State of Punjab, 1962 SCC OnLine SC 42.
44. He further supports the submission of the learned APP that the
FIR was registered promptly and without any delay, having been
registered at 03:25 a.m. on the basis of the statement of PW-1/Suresh
Kumar, which was recorded within 2 hours of the incident from the
hospital itself, thereby ruling out the possibility of false implication of
the appellants.
45. The learned counsel also submits that the testimony of a related
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witness cannot be considered to be tainted evidence and cannot be
discarded on that ground alone. He submits that it also does not
require corroboration as a rule, and can form the basis of conviction, if
found to be credible. In furtherance, he places reliance on the
judgment of the Supreme Court in Sarwan Singh & Ors. v. State of
Punjab, (1976) 4 SCC 369. He further submits that a related witness
cannot be termed as an interested witness per se. He submits that a
related witness, particularly a family member, may be a natural
witness in cases taking place around the vicinity of the victim and the
witness. In this regard, reliance is placed on the judgments in Rajesh
Yadav & Anr. v. State of Uttar Pradesh, (2022) 12 SCC 200 and
State of Rajasthan v. Kalki & Anr., (1981) 2 SCC 752.
ANALYSIS AND FINDINGS
46. We have considered the submissions made by the learned
counsels for the parties and have also perused the records of the
learned Trial Court.
47. The case of the prosecution rests primarily on the testimony of
PW-1/Suresh Kumar, who has given a detailed account of the
assault, including the specific role attributed to each of the
appellants. He stated that on the night intervening 23rd and 24th June
1999 at about 12-12:30 a.m., a vehicle had come to lift malba from
the house of witness which was under construction. As he came out
of the gali, he saw that the appellants had surrounded the deceased.
Appellant-Rajinder had caught hold of the hands of the deceased on
his back. On the right hand side of the deceased was appellant no. 4-
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Jasvinder while on front was the appellant no. 2-Ravi @ Raju. On his
side, appellant no. 3- Mangal was standing. Raju and Mangal were
shouting “Maro Salley Ko Chorana Nahai”. Jasvinder was also
giving similar calls. Appellant no.2/Ravi @ Raju and appellant no.4/
Jasvinder @ Sunny inflicted knife blows on the deceased. By the
time he reached to the deceased, the deceased had already fallen on
the ground. The appellants, on seeing the PW-1 approaching the
deceased, ran away towards the park side. PW-1 then called for PW-
3/Gopal Kumar and other persons from neighbourhood also gathered
there. He asked PW-3/Gopal Kumar to inform the police. Thereafter,
the deceased was taken to AIIMS.
48. PW-1/Suresh also testified that the appellant no.2 was holding
a grudge against the deceased and his family for the past 8-9 months,
on account of their intervention in a quarrel between PW-5/Narender
and appellant no.2/Ravi @ Raju, which resulted in an FIR and
subsequent arrest of appellant no.2. He states that on 24.06.1999, at
about 8 or 8:30 pm, he had noticed Appellant-Rajinder pass from the
gali and he immediately informed the SHO. SHO accompanied him
to the house of Rajinder from where Rajinder was arrested.
49. In his cross-examination, he stated that the deceased had gone
to the malba site and when he did not come for about 10 minutes, he
had gone from his room to see the deceased. He stated that the tractor
trolley which had to lift the malba had not come for lifting the same
and the deceased had gone to check if it has come or not. To a
specific question asked, he stated that there was light in the gali and
on the road. He stated that as far as appellant no.1/Rajinder is
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concerned, he or his family had no quarrel or enmity with the
deceased prior to the incident. He stated that he was just 20-25 yards
away from the place where appellant-Rajinder was holding the hands
of the deceased. He further admitted that he did not actually see the
inflicting of stab wound by appellant Ravi @ Raju and appellant
Jasvinder @ Sunny, though he had seen knives in their hands.
50. The testimony of PW-1/Suresh Kumar is corroborated by the
testimony of PW-3/Gopal Kumar, who deposed that on the night of
the incident, upon hearing cries of PW-1/Suresh Kumar, he went to
the gali and saw the deceased lying on the ground in an unconscious
state and PW-1 crying near him. PW-1 told him to give a call to
police from the house. He immediately went to the house and called
the police, whereafter, he returned and took the deceased to the
hospital along with PW-1/Suresh Kumar. He further stated that on
the way to the hospital, PW-1/Suresh Kumar named the appellants as
the assailants of their brother. He also stated that the appellants had
inimical relations with them for 8-9 months preceding the incident.
51. The statements of PW-1/Suresh Kumar and PW-3/Gopal
Kumar are further corroborated by the testimony of PW-4/Gauri
Devi, the mother of the deceased, as also of PW-1 and PW-3. She
stated that on the fateful day, PW-3 had called at 100 number from
the telephone installed at her home and she had heard him telling the
police that his brother had received stab injuries. This call is
corroborated by DD No. 22 (Ex. PW12/A) and by DD No. 22A (Ex.
PW16/A) recording the factum of the call received from the
telephone number installed in the house of PW-4.
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52. From the above testimonies, the presence of PW-1 and his
witnessing the incident stands proved. He has deposed of the exact
role of each of the appellants. Minor contradictions, if one may even
call them contradictions, do not in any manner detract from his
statement or cast an iota of doubt on the same.
53. The testimony of PW-1 gets further corroborated by the MLC
Report (Ex. PW15/A), wherein the deceased is reported to have been
brought to the hospital by PW-1. The submission of the learned
counsel for the appellants that the name of PW-1 has been
subsequently added to this report, does not hold much water, as the
name, age and address of the deceased is recorded in the MLC
Report, which could have been given only by PW-1. The relationship
of the person bringing the deceased is described as „brother‟. Even if
the name of PW-1 is written later, it is because the first concern of
the doctor has to be to check the patient and not to complete all the
formalities in the form.
54. Much emphasis has been laid by the learned counsel for the
appellants on the non-seizure of the blood-stained clothes of PW-1
and PW-3. He submits that this shows that the deceased was not
shifted to the hospital by them. We do not find any merit in the said
submission. While it would have been better for the prosecution to
have seized the blood-stained clothes of PW-1 and PW-3, however,
mere non-seizure of the same cannot be said to be fatal to the case of
the prosecution or as casting a doubt on its case, especially where,
from the evidence on record, the PW-1 and PW-3 come out to be
wholly reliable witnesses. The DD No. 23 (Ex.PW-12/B) records the
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information received from AIIMS at 1:20 a.m. from Duty Constable
Narender Kumar regarding a boy being brought by his brother, PW-
1/Suresh, with stab injuries, and having been declared as „brought
dead‟ by the doctors. This itself shows that it is the PW-1 who had
shifted the deceased to the hospital.
55. In Khima Vikamshi (supra), the Supreme Court found the
alleged eye-witness therein, the daughter-in-law of the deceased, to
be unreliable. It was held that her presence at the spot and the
manner she described the incident, was doubtful. Similarly, the
presence of the brother of the deceased at the spot was doubted and
his sudden appearance was found to be “too much of a coincidence to
accept”. In the light of these doubts, the Supreme Court also laid
emphasis on the non-seizure of the clothes of these witnesses. The
said judgment is therefore, distinguishable on facts inasmuch as, in
the present case, the presence of PW-1 and PW-3 gets corroborated
from other evidence as well.
56. The submission of the learned counsel for the appellants that
PW-1/Suresh Kumar cannot be believed as he is an interested
witness, does not impress us. Though PW-1/Suresh Kumar is the
brother of the deceased, this, in itself, is not sufficient to discredit his
testimony, especially when it stands corroborated by the other
evidence on record.
57. In Kalki (supra), the Supreme Court rejected the submission
that the testimony of the wife of the deceased could not be relied
upon as she was „highly interested‟ witness, by observing that
„related is not equivalent to interested‟. A witness may be called
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„interested‟ only when he/she derives some benefit from the result of
a litigation; a witness who is the natural one and is the only possible
eye-witness in the circumstances of the case, cannot be said to be
„interested‟. On the plea of there being discrepancies in the evidence
of the witnesses, the Supreme Court clarified that material
discrepancies are those which are not normal and not expected of a
normal person. Normal errors of observation, normal errors of
memory due to lapse of time or due to mental disposition, such as
shock and horror at the time of the occurrence, and the like, cannot
be said to be material discrepancies so as to discard the testimony of
the witness.
58. In Sarwan Singh (supra), the Supreme Court clarified that it
is not the law that the evidence of an interested witness should be
equated with that of a tainted witness; it is only a rule of prudence
that the evidence of an interested witness should be scrutinised with a
little extra care. Once that approach is made and the court is satisfied
that the evidence of the interested witness has a ring of truth, such
evidence could be relied upon even without corroboration. It was
also opined that there may be circumstances where only interested
witnesses may be available, like occurrences that take place at
midnight in the house. In such cases, it would not be proper to
disbelieve the evidence of interested witness/family members only
because of their interest.
59. In Rajesh Yadav (supra), the Supreme Court reiterated the
above test of examining the testimony of a so-called „interested
witness‟, as under:
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“31. A related witness cannot be termed as an
interested witness per se. One has to see the
place of occurrence along with other
circumstances. A related witness can also be a
natural witness. If an offence is committed
within the precincts of the deceased, the
presence of his family members cannot be
ruled out, as they assume the position of
natural witnesses. When their evidence is
clear, cogent and withstood the rigour of
cross-examination, it becomes sterling, not
requiring further corroboration. A related
witness would become an interested witness,
only when he is desirous of implicating the
accused in rendering a conviction, on purpose.
32. When the court is convinced with the
quality of the evidence produced,
notwithstanding the classification as quoted
above, it becomes the best evidence. Such
testimony being natural, adding to the degree
of probability, the court has to make reliance
upon it in proving a fact. The aforesaid
position of law has been well laid down in
Bhaskarrao v. State of Maharashtra…
xxx
33. Once again, we reiterate with a word of
caution, the trial court is the best court to
decide on the aforesaid aspect as no
mathematical calculation or straitjacket
formula can be made on the assessment of a
witness, as the journey towards the truth can
be seen better through the eyes of the trial
Judge. In fact, this is the real objective behind
the enactment itself which extends the
maximum discretion to the court.”
60. In George (supra), the Supreme Court reiterated that merely
because a witness is an interested witness, it cannot be a ground to
discard the testimony of such a witness; only the testimony of such a
witness has to be scrutinised with greater caution and
circumspection.
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61. We need not multiply the authorities on the above proposition.
In the present case, as we have noted hereinabove, PW-1/Suresh has
stood out as a “wholly reliable” witness, whose testimony stands
corroborated by the other evidences on record. We find no reason to
disbelieve him because of the minor contradictions that have been
pointed out by the learned counsel for the appellants.
62. Though in a case where the incident is proved through an eye-
witness, the presence of a motive for the crime may not be essential.
In the present case, even motive stands proved through the testimony
of PW-5/Narender Kumar, who used to run auto rickshaw for PW-
1/Suresh Kumar. He stated that he used to reside in the house of one
Bhagwana, who is the paternal uncle (tau) of the appellant no. 2/Ravi
@ Raju, and was located opposite to the house of the deceased and
his brothers. He stated that on 13.09.1998, in order to get the house
vacated, appellant no.2, along with a friend, Sudesh, was assaulting
him, when the deceased, PW-1/Suresh Kumar and PW-3/Gopal
Kumar intervened, pursuant to which the appellant no.2 was arrested.
He also stated that appellant no.2 had, on various occasions, asked
him to bring the deceased at some place to which he had refused.
63. The submission of the learned counsel for the appellants that
as there was enmity between the deceased, PW-1 and PW-3, on the
one side, and the appellants on the other, the testimony of PW-1 and
PW-3 cannot be relied upon, also cannot be accepted. As rightly
contended by the learned counsel for the appellants, enmity is a
double-edged sword and, therefore, while proof of motive for the
offence may support the prosecution‟s case, at the same time, it may
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also give rise to a possibility of a false implication. Therefore, in
such circumstances, the testimony of the witness needs to be
examined more carefully. In the present case, when so examined,
PW-1 and PW-3 come out to be reliable witnesses. In this regard, we
would also note that there is no true enmity between the two parties.
It is, in fact, the appellant who carried a grudge against the deceased,
PW-1 and PW-3, for taking the side of PW-5/Narender Kumar in an
alleged fight between the appellant no.2/Ravi @ Raju and PW-5.
64. We may herein also note that PW-3/Gopal Kumar has not been
set up by the prosecution as an eyewitness to the incident. It is on
hearing the hue and cry of PW-1/Suresh Kumar that he had come out
of his house and was informed by PW-1/Suresh Kumar that the
deceased has been stabbed. He ran back to the house to give a call to
the police. Merely because in the PCR complaint, instead of writing
the name of the deceased, it is written „ek ladke ko chaaku maar diya
hai‟, it cannot be said that the incident as described by PW-1 and
PW-3, cannot be accepted. The manner in which the entry is
recorded in the PCR register, cannot undermine the otherwise
corroborated testimonies of these witnesses. It could be the manner
in which PW-3 informed the police in his anxiety seeing the state of
the deceased or the casual manner in which the information was
recorded by the concerned police officer. In either way, it does not
undermine the manner in which the incident has been described by
the prosecution witnesses, and rather, renders a ring of truth on the
same. If the PW-1 was to be set up as a false eye-witness, nothing
stopped the prosecution to also set up PW-3 as the same, along with
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PW-1. In fact, this itself shows that PW-1 alone was the eye-witness,
whose testimony gets corroborated with the testimony of other
witnesses and contemporaneous documents.
65. As far as the non-examination of public witnesses is
concerned, the same is certainly desirable, however, the case of the
prosecution cannot be doubted only because the police, in its
lackadaisical approach did not choose to record the statement of the
public witnesses, or because the public witnesses, not wanting to be
involved in criminal cases, especially of this nature, do not volunteer
to stand as witness. In the present case, the track record of the
deceased was not stellar, as is coming out from the cross-
examination of PW-1. In such a case, it would not be uncommon for
the public witnesses to stay away from the deceased‟s family, the
accused and the police. In fact, the motive in the present case itself is
that the deceased had stood as a witness/complainant against the
appellant no. 2 in his case against PW-5. Therefore, the case of the
prosecution cannot be doubted only because the public witnesses,
who, as per the prosecution, were not the eye-witness, were not
examined.
66. This now brings us to the submission of the learned counsel
for the appellants that there was a delay in registration of the FIR,
which in his submission is sufficient to create a doubt on the case of
the prosecution. As noted hereinabove, DD No.22 (Ex.PW-12/A)
was recorded on the call received at 01:06 a.m. of a boy being
stabbed. The mere fact that the name of the deceased was not written
therein, would not cast a doubt on the case of the prosecution as the
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phone number from which the call was made was duly mentioned in
the report. The person writing the information may or may not have
written the name of the injured. The said information was thereafter
communicated to the concerned police station vide DD No. 22A
(Ex.PW-16/A). The DD No. 23 (Ex.PW-12/B) records the
information received from AIIMS at 1:20 a.m. from Duty Constable
Narender Kumar regarding a boy being brought by his brother, PW-
1/Suresh Kumar, with stab injuries, and having been declared as
„brought dead‟ by the doctors. PW-16/SI Raghunath (Retd.) states
that he had been handed over DD No. 22A for investigation. He
reached the spot of the incident and after leaving Constable Prem
Kumar there, he went to AIIMS, where he met Constable Kamaljeet,
who, in turn, handed him over DD No.23A (Ex. PW-16/B) and the
MLC Report. He states that thereafter PW-17/Insp. Greesh Kumar,
SHO at P.S. K.M. Pur, recorded the statement of PW-1/Suresh
Kumar (Ex.PW-1/A) and sent Constable Nasib Singh with the rukka
for registration of the FIR. The FIR (Ex. PW-12/D) was then
registered at 03:25 a.m. on 24.06.1999. There is, therefore, no delay
in registration of the FIR. In fact, we must herein note that in Ex.PW-
1/A, that is, the statement of PW-1/Suresh Kumar, the entire incident
was narrated by him by naming the appellants as the assailants. The
time gap between the incident, the shifting of the deceased to the
hospital, the reaching of the SHO there, and the recording of the
statement of PW-1 is so short that it rules out making out of a false
case against the appellants.
67. In Allarakha Habib Memon (supra), the Supreme Court found
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serious discrepancies in the registration of the FIR. It found that the
police constable had seen the incident and had also brought the crime
weapon to the police station. However, his statement was not
recorded by the police, nor was any entry made regarding the factum
of presentation of the weapon in the daily diary (roznamcha) of the
police station. There was a further discrepancy in the statement of the
witness, on basis of which the FIR was registered, as to whether it
was recorded at the hospital or in the police station. The Court also
found that there was also a discussion held amongst the relatives as
to the manner in which the complaint was to be drafted and lodged.
In the present case, as we have noted hereinabove, the initial call
made by PW-3/Gopal Kumar could not be the basis of the
registration of the FIR. On the police party reaching the place of
incident, it came to know that the deceased had been removed to the
hospital. At the hospital, the statement of PW-1/Suresh Kumar was
recorded, on the basis of which the FIR was registered. We find no
infirmity in the same. We also find that there was no time gap or
delay in registration of the FIR which could have cast a doubt on the
version of PW-1/Suresh Kumar or on the contents of the FIR.
68. In Amitbhai Anilchandra Shah (supra), the second FIR was
registered for different offence committed as part of a single
conspiracy, and in the same transaction. The Supreme Court held that
under the scheme of the relevant provisions of the Cr.P.C., only the
earliest or the first information in regard to the commission of a
cognizable offence satisfies the requirement of Section 154 of
Cr.P.C. and, therefore, there can be no second FIR, and
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consequently, there can be no fresh investigation on receipt of every
subsequent information in respect of the same cognizable offence or
the same occurrence or incident, giving rise to one or more
cognizable offences. It was held that a second FIR (which is not a
cross-case) in respect of an offence or different offences committed
in the course of the same transaction, is not only impermissible, but it
also violates Article 21 of the Constitution of India. The said
judgment will have no application to the facts of this case.
69. We, again, need not multiply the authorities on the above
proposition which is well-settled, however, in the facts of the present
case have no application.
70. The aspect of alleged delay in registration of the FIR has also
been considered by the learned Trial Court in detail, and has been
rejected by observing as under:
“7. …There is some timing difference, in the
time of murder stated by witness Suresh and
recording of DD Ex.PW.12/A, which is
DD.No.22A. This time difference has been
explained by the prosecution and it is
submitted by ld. APP that Gopal made call to
police control room and there is a procedure
followed at police control room that a form is
filled after receipt of the call, then this form is
sent to wireless message room and from there,
wireless message is sent to the nearest PCR
van and direction is given to come into action
and then the report is made to the local police
and this process takes 10-15 minutes. The gap
in time can also be explained from the fact that
deceased was examined by the doctor in
casualty at 1.09 hours. It must have taken
sometime in removing the deceased from Kotla
Mubarakpur in a three wheeler scooter and
then taking him to AIIMS in the Casualty andSignature Not Verified
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then the doctor examined him and the fact that
doctor examined him at 1.09 hours in the
night, shows that deceased must have been
removed from the place of incident around
12.45/12.50 a.m. as 20 minutes is the
approximate time, which would have been
spent in removing the person from a place at
K. M. Pur till taking him to AIIMS’ Casualty.
I, therefore, consider that the time given of the
incident by witness Suresh was the correct
time.”
71. We concur with the above opinion of the learned Trial Court.
72. The learned counsel for the appellants has urged that there was
non-compliance with Section 157 of the Cr.P.C. Even this
submission of the appellants cannot be accepted. PW-12/Head
Constable Karan Singh, had stated that after recording the FIR, he
sent a special messenger- Constable Pramod Kumar (PW-9) for
taking a copy of the FIR to senior police officers and the concerned
Magistrate. His testimony stands corroborated with the statement of
PW-9/Constable Pramod Kumar, who stated that on being handed
over the copy of the FIR in a sealed envelope, he delivered the same
to the Area Magistrate and other senior police officers. He was not
cross-examined on this.
73. This now brings us to the recovery of the knives and the T-
shirt at the behest of the appellant no.2/ Ravi @ Raju. PW-13/Head
Constable Satbir Singh deposed that on 29.06.1999, SHO received an
intimation that the accused persons were attempting to leave Delhi
from bus stand Sarai Kale Khan. They went to Sarai Kale Khan,
where they found appellant no.2, whom he knew from before,
standing at the Ring Road bus stand. He told the SHO about the same
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and the SHO, with the help of the other police staff, including PW-
13, apprehended the appellant no.2, appellant no.3 and appellant no.4
and their disclosure statements were recorded (Ex.PW-17/E, 17/F
and 17/G). He further states that thereafter they took the said
appellants with them to the shop of appellant no.2/Ravi @ Raju.
While the other two appellants were left in the vehicle, the appellant
no.2 led them behind a shop and from there, under a wooden takht,
where other junk material was lying, he pulled out a white polythene
containing one white T-shirt, and three knives (chhuriya) which were
having blood stains. The T-shirt was also having blood stains.
Similar is the testimony of PW-17/Insp. Greesh Kumar. The
appellants have assailed the said recovery by stating that even
accepting the case of the prosecution, the knives have been recovered
from an open space behind the shop of appellant no.2 and, therefore,
no reliance can be placed on the same. We are unable to accept the
said submission, as the knives have been recovered from under the
takht behind the shop of the appellant no.2, kept concealed in a
polythene bag along with other junk material. It was, therefore, not
lying in the open.
74. The appellant nos.1 and 3 have also contended that as these
knives were recovered at the pointing of the appellant no.2/Ravi @
Raju, they can be used only in evidence against the said appellant.
While we do find merit in the same contention, in our view, in the
presence of direct eye-witness testimony, and other evidence in form
of testimonies of other witnesses and documents, the recovery of
knives is also one of the circumstances which connects the appellants
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with the crime.
75. The learned counsel for the appellants is also correct in his
submission that ideally the knives should have been shown to PW-
2/Dr.T. Millo, who had conducted the post-mortem on the deceased,
for obtaining an opinion on whether the injuries could have been
caused by the same. However, in the present case, the prosecution
has tried to connect these knives with the crime through the CFSL
Report (Ex.PW-7/B), which opined that two of the three knives, that
is, Ex.11 and Ex.12, as also the T-shirt (Ex.10), recovered at the
behest of the appellant no.2, had human blood of AB group, which is
also the blood group of the deceased. Suggestions were given by the
appellants to PW-17/Insp. Greesh Kumar that he had picked up the
meat-cutting chhura from the meat shop of appellant no. 2/Ravi @
Raju and had poured blood collected by him from the hospital.
However, the suggestion was denied and there is also no material to
support such suggestion of the appellants. Therefore, in our view, the
prosecution has also been able to connect the recoveries made at the
behest of the appellant no.2 to the crime.
76. In Ishwar Singh (supra), there were two accused who were
alleged to be carrying two different kinds of weapons, one a ballam
and the other a bhala. In these facts, the Supreme Court held that not
obtaining an opinion of the medical expert as to which weapon
caused the injury, casts a doubt on which of the accused had given
the fatal blow and therefore, conviction of one of them under Section
302 of the IPC cannot be sustained. The Supreme Court relied upon
its earlier judgment in Kartarey (supra), wherein it was held as
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under:
“26. We take this opportunity of emphasising
the importance of eliciting the opinion of the
medical witness, who had examined injuries of
the victim, more specifically on this point, for
the proper administration of justice.
particularly in a case where injuries found are
forensically of the same species. e.g. stab
wounds, and the problem before the Court is
whether all or any of those injuries could be
caused with one or more than one weapon. It
is the duty of the prosecution, and no less of
the Court, to see that the alleged weapon of
the offence, if available, is shown to the
medical witness and his opinion invited as to
whether all or any of the injuries on the victim
could be caused with that weapon. Failure to
do so may, sometimes, cause aberration in the
course of justice. Fortunately, in the instant
case, the number, nature and dimensions of
the injuries of the deceased, as deposed to by
Dr. Sohan Lal, afford a sure indication that
they were caused with three different
weapons.”
77. Therefore, if there are other evidence by which the weapon can
be connected with the injury, mere non-examination of the doctor on
the same would not be fatal to the case of the prosecution.
78. In Gurcharan Singh (supra), the Supreme Court has clarified
that it is not an inflexible rule that in every case where an accused
person is charged with murder caused by a lethal weapon, the
prosecution can succeed in proving the charge only if an expert is
examined. It is possible to imagine cases where the direct evidence is
of such an impeachable character and the nature of the injuries
disclosed by post-mortem notes is so clearly consistent with the
direct evidence that the examination of an expert may not be
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regarded as essential.
79. The learned counsel for the appellants has further contended
that the only role ascribed to the appellant no.3/Mangal Khatri is that
of exhortation and, therefore, he cannot be said to be sharing a
common intention with the other appellants to kill the deceased. The
said submission can also not be accepted. The entire incident has
been described by PW-1/Suresh Kumar. He had seen at least two
appellants stabbing the deceased, that is, the appellant no.2 and the
appellant no.4, with the appellant no.1 holding the deceased from the
back. There is also a recovery of a third knife at the behest of the
appellant no.2, which also contains human blood as per the CFSL
Report (Ex.17/B). The appellant no.3/Mangal Khari was not a mere
bystander, but when the appellant no.2 and the appellant no.4 were
inflicting the knife blows on the deceased, he was exhorting them to
do so. He clearly shared the common intention with the other
appellants to kill the deceased. We, therefore, do not find any merit
in the above submission of the learned counsel for the appellants.
80. As regards the submission of the learned counsel for the
appellants that the post-offence conduct of the appellants would not
be relevant against them, we may only note that the appellants have
absconded from the crime scene and were untraceable. While the
conduct of appellants cannot, by itself, be sufficient to bring home a
charge against the appellants, however, it may be considered by the
Court as one of the circumstances against them, along with the other
direct or circumstantial evidence on record. In Harvinder (supra),
Supreme Court held that a subsequent conduct would be a relevant
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fact under Section 8 of the Evidence Act, though it may by itself not
constitute the sole factor to convict a person. In the present case, the
charge is proved against the appellants beyond reasonable doubt,
through the testimony of the eye-witness and other corroborating
circumstances.
81. The submission of the learned counsel for the appellants that
the evidence given by the defence witnesses has been ignored by the
learned Trial Court, also cannot be accepted. The learned Trial Court
has considered the defence set up by the appellants and the
testimonies of the defence witnesses at length, and we may reproduce
the same as under:
“16. Accused Rajendar produced defence
evidence to show that he was present at his
house on that evening. He had suffered
epilepsy fit and was in his house from 11/11.30
p.m. to right upto 2.30 a.m. DW.1 is Kanhiya
Lal, a neighbour of Rajendar. He in his
examination-in-chief testified that when he
was at his shop, a child came to him to call
him to reach at the house of Rajendar as
Rajendar was not feeling well. It has come in
the evidence that Rajendar was having three
brothers and all the three were living in the
same house. When other brothers of accused
Rajendar were living in the same house with
their families, I do not find why this witness
would have been called, if Rajendar had
suffered epilepsy fit. It is a case of accused
himself that he was patient of epilepsy since
long. If a patient of epilepsy suffers fit at his
house, he recovers from the fit after sometime
and it is not something, for which messengers
are rushed to different places to call the
persons. Moreover, Kanhiya Lal is not a
doctor, who would have gone and given some
medicine, neither when he came, had taken
Rajendar to any doctor. DW.3 is Babu Lal,Signature Not Verified
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who also deposed about accused Rajendar
suffering from epilepsy and he stated that he
went to the house of Rajendar and kept sitting
there upto 2 a.m. in the night. Rajendar was
given some medicine. I consider his testimony
also most unnatural since those, who suffer
from epilepsy, do get fits occasionally and
when the fit is over, after sometime they
become normal. There is no reason for
anybody to remain upto 2 a.m. at the house of
such a person. These witnesses seem to have
been produced only to take the plea of alibi.
Similarly, DW.4 is also a witness of sitting
with Rajendar on that night upto 5/5.30 a.m.
as Rajendar had suffered epilepsy sit. I
consider that none of these witnesses are
believable on the point that they remained at
the house of Rajendar because he had suffered
a fit of epilepsy…”
82. For the reasons stated hereinabove, we find no merit in the
present appeal. The same is, accordingly, dismissed.
83. We, again, note that unfortunately the appellant no.4 has since
passed away and, therefore, his appeal has abated.
84. As far as the remaining appellants are concerned, they shall
surrender before the learned Trial Court within two weeks from
today, failing which the respondent shall ensure that they are taken
into custody for undergoing their remaining sentence.
85. A copy of this judgment be sent to the concerned Jail
Superintendent and the learned Trial Court for information and
ensuring compliance.
NAVIN CHAWLA, J.
RAVINDER DUDEJA, J.
MAY 26, 2026/sg/ns/Yg
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